Recent Decisions and Legislation October 1, 2020

 

 

 

September 16, 2020

Appellate Division, Second Department

Defendants sustained physical abuse of the plaintiff constituted egregious marital fault to be factored into equitable distribution award

 In Socci v Socci, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 5223043 (Mem), 2020 N.Y. Slip Op. 04888 (2d Dept.,2020) the parties were married on February 7, 1987. In March 2008, the defendant was convicted, upon his pleas of guilty, of assault in the second degree (two counts), kidnaping in the second degree, and aggravated criminal contempt related to incidents in which he beat the parties= two daughters with a belt and chained them to a tree overnight, and forced the plaintiff into his vehicle and tried to make her pour gasoline on herself. In October 2009, the plaintiff commenced this action for a divorce. At the trial in the divorce action, the plaintiff testified as to these events, as well as numerous other incidents of physical abuse during the marriage. Supreme Court, among other things, found that the defendant=s egregious conduct in abusing the plaintiff over the course of the marriage warranted consideration in determining equitable distribution. Based, in part, on the defendant=s egregious fault, the court awarded the plaintiff 75% of the net proceeds from the sale of the marital residence and 60% of the parties= investment and bank accounts and of the marital contributions to the defendant=s deferred compensation plan. The Appellate Division affirmed. It held that the  general rule in New York is that marital fault should not be considered in determining equitable distribution. However, egregious marital fault may be considered in rare cases involving extreme conduct which shocks the conscience of the court. The marital misconduct must be Aso egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship. It found Supreme Court providently exercised its discretion in finding that the defendant=s sustained physical abuse of the plaintiff over the course of their marriage constituted egregious marital fault to be factored into the equitable distribution award in addition to other considerations, and providently exercised its discretion in fashioning the equitable distribution award (see Havell v. Islam, 301 A.D.2d at 345, 751 N.Y.S.2d 449; Brancoveanu v. Brancoveanu, 145 A.D.2d at 398, 535 N.Y.S.2d 86).

 

Court imputing income must provide a clear record of the source of  imputed income, reasons for the imputation, and the resultant calculations.

In Pilkington v Pilkington,   185 A.D.3d 844, 127 N.Y.S.3d 523, 2020 N.Y. Slip Op. 03931 (2d Dept, 2020) the parties were married in 2003 and had two children, born in 2006 and 2007, respectively. In 2013, the plaintiff commenced the action for a divorce. After the parties stipulated to the terms of custody and parental access, they agreed to have the Supreme Court decide the Afinancial, property and employment matters@ based on their submissions in lieu of a trial. The Appellate Division held that Athe court may impute income based on the parent=s employment history, future earning capacity, educational background, or money received from friends and relatives. However, the court must provide a clear record of the source of the imputed income, the reasons for the imputation, and the resultant calculations, It  agreed with the Supreme Court’s determination to impute income of $85,000 to the plaintiff based, in part, on contributions he received from his fiancée, but the amount imputed was not supported by the record .It also agreed with the court’s determination to impute income to the plaintiff based on income he received from performing side jobs. It also held that based upon the defendant=s skills and employment experience, and contributions from her family, the court improvidently exercised its discretion in imputing to her an annual income of only $25,000. Since the documents submitted by the parties were inadequate to determine the contributions from the plaintiff=s fiancée and the average income earned by the plaintiff from performing side jobs, and the parties were not afforded the opportunity to submit further documents, the matter was remitted to the Supreme Court to hold a hearing on the issue of how much income should be imputed to each party, and the calculation of a new child support obligation thereafter.

 The Appellate Division observed that pursuant to Domestic Relations Law ' 240(1Bb)(c)(7), the court may direct a parent to contribute to a child=s education. In determining whether to award educational expenses, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice.  Supreme Court providently exercised its discretion in not requiring the plaintiff to pay a pro rata share of the parties= children=s private school tuition. The defendant failed to submit evidence to establish that the education provided by the public schools in Florida would be inferior to that provided by Hillel Day School of Boca Raton, a private religious school, or that the needs of either child would be better served by their attendance at a private religious school.

September 1, 2020

Executive Order 202.60 continues the modification and suspension of laws relating to the disaster emergency.

 

The Executive Order extends the provisions tolling the Statute of Limitations until October 4, 2020. It also modifies previous executive orders to provide that the tolling of civil statutes of limitation be lifted as it relates to any action to challenge the approval by any municipal government or public authority of a construction project that includes either affordable housing or space for use by not-for-profit organizations. The EO further states that "The suspension of Section 30.30 of the Criminal Procedure Law, is hereby modified to require that speedy trial time limitations remain suspended in a jurisdiction until such time as petit criminal juries are reconvened in that jurisdiction; Criminal Procedure Law 170.70 is no longer suspended, and for any appearance which has been required to be in-person may continue to be conducted virtually with the consent of the parties."

 

Appellate Division, Second Department Amends Rules of Practice

By Administrative Order issued on July 1, 2020, the Second Department has amended its local rules of practice to omit the requirement that papers in relation to motions and original proceedings be filed in both digital and hard copy format. Rather, all such papers “shall be submitted in digital format, shall comply with the technical requirements for electronically filed documents (22 NYCRR Part 1245, Appendix A), shall be served on all parties in digital format, and shall be filed by uploading through the digital portal located on the home page of the Court’s website with proof of service” (Admin Order 2020-0701). Hard copy submissions are only required when specifically requested by the Court. This amendment, by which subdivision (d) was added to section 670.4 of the Second Department’s Rules of Practice, applies to both NYSCEF matters and matters in which electronic filing via the NYSCEF system is not mandated. Exemptions are provided for exempt attorneys and exempt litigants as those terms are defined in the Electronic Filing Rules of the Appellate Division (22 NYCRR 1245.4), who must be served and must file in hard copy.

Second Department

To find a marital contract unconscionable, two elements must be shown: procedural unconscionability, and substantive unconscionability

In Cilento v Cilento, --- N.Y.S.3d ----, 2020 WL 4661442, 2020 N.Y. Slip Op. 04453 (2d Dept.,2020) the parties were married on January 20, 1996. In April 2018, the plaintiff commenced this action for a divorce seeking, inter alia, to incorporate a stipulation of settlement that the parties had entered into in August 2017 into the judgment of divorce. The defendant  moved to vacate the stipulation on the ground that it was unconscionable. The Supreme Court denied the defendant’s motion, and the Appellate Division affirmed.  As relevant to the appeal, the attorney who the defendant retained in connection with a Family Court proceeding and who he used in the past , when he needed an accurate Italian translation and understanding of legal documents was the mediator the parties thereafter selected and each paid to assist them in formulating the terms of the stipulation after two sessions with him.

            The Appellate Division held that in order to find a marital contract unconscionable, two elements must be shown: procedural unconscionability, which requires “[a] lack of meaningful choice” on the part of one of the parties, and substantive unconscionability, which requires contract terms which are “unreasonably favorable” to the other party (Gillman v. Chase Manhattan Bank, 73 N.Y.2d 1, 10–12, 537 N.Y.S.2d 787, 534 N.E.2d 824). The defendant failed to establish that the stipulation was procedurally unconscionable. The stipulation was the product of a mediation conducted by an attorney who had represented the defendant on past occasions—specifically, according to the defendant, when he needed an accurate translation and understanding of legal documents. The defendant’s contention that he signed the stipulation without fully understanding its terms was wholly inconsistent with his contention that the reason he had retained the attorney  in the past was because he had used the attorney to explain and translate legal documents. It  agreed with the Supreme Court’s determination that the stipulation at issue was not procedurally unconscionable.

             The defendant also failed to show that the stipulation was substantively unconscionable. Each party relinquished significant rights under the terms of the stipulation.

 

Third Department

Only penalty Family Court may impose for willful violation of a custodial order without a concurrent modification petition pending is a monetary fine and/or imprisonment

           

In Matter of Gerard P. v Paula P. --- N.Y.S.3d ----, 2020 WL 4678335, 2020 N.Y. Slip Op. 04515(3d Dept.,2020) the Appellate Division held that Family Court erred in dismissing the mother’s  modification petitions without conducting a hearing. In any modification proceeding, the threshold issue is whether there has been a change in circumstances since entry of the prior custody order that warrants a review of the issue of custody to ensure the continued best interests of the children. An evidentiary hearing is generally necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the Court has sufficient information to undertake a comprehensive independent review of the children’s best interests.

 

            The Appellate Division found that Family Court did not, as required on a motion to dismiss,  liberally construe the mother’s pro se petitions, accept her allegations as true, afford her the benefit of every possible inference or resolve credibility issues in her favor when determining the motions to dismiss. Family Court improperly made factual findings and credibility determinations, inappropriately resolving the conflicting versions of events, as set forth in the mother’s petitions and the father’s supporting affidavits, against the mother and in favor of the father. Such factual findings and credibility assessments have no place in an order resolving a motion to dismiss for failure to state a claim.

             In reversing the orders it pointed out that generally, the only available penalty that Family Court may impose for a willful violation of a custodial order without a concurrent modification petition pending is a monetary fine and/or a period of imprisonment (see Judiciary Law § 753[A]; Family Ct. Act § 156). Family Court sanctioned the mother by modifying the joint legal order of custody and granting the father sole legal custody of the children without determining whether there had been a change in circumstances. In addition, Family Court failed to engage in any discernible analysis of whether a modification was in the best interests of the children.

 

Supreme Court

 

Permission to serve defendant by an alternative method (see CPLR 308(5)) FedEx International Economy mail granted

 

            In Sweet-Martinez v Martinez, --- N.Y.S.3d ----, 2020 WL 4590510, 2020 N.Y. Slip Op. 20195 (Sup Ct., 2020) plaintiffs ex parte motion for permission to serve defendant via an alternative method (see CPLR 308 [5]), namely FedEx International Economy mail to his last known address in Mexico was granted. The parties were married on November 17, 2007. Defendant was  deported to Mexico on March 8, 2011. Plaintiff commenced this action for a no-fault divorce on December 28, 2019 (see Domestic Relations Law § 170 [7]). Plaintiff argued that  service upon defendant by mail was permissible under article 10 (a) of the Hague Convention on Service Abroad, which provides: “Provided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.” The Court observed that although there is no case law on this precise issue in New York, other courts have found that Mexico has not outright objected to article 10 (a) of the Hague Convention permitting service of process by mail (see e.g. Intl. Transactions, Ltd v Embotelladora Agral Regionmontana SA de CV, 277 F Supp 2d 654, 663 [ND TX 2002]; Matter of Root, 185 Wash App 1009, 2014 WL 7341131, *9 [Washington Ct App 2014]). To that end, the Court found that service upon defendant via FedEx International Economy mail to his last known address in Mexico was permissible — under both CPLR 308 (5) and article 10 (a) of the Hague Convention.

August 16, 2020

Appellate Division, Second Department

Children failed to receive meaningful assistance of counsel where AFC substituted judgment and took position contrary to wishes of children.

 In Silverman v Silverman,‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 4342466, 2020 N.Y. Slip Op. 04338 (2d Dept.,2020) the Appellate Division found that the AFC improperly substituted judgment and took a position that was contrary to the wishes of her clients, the parties= children, to such a degree that the custody order should be reversed and the matter remitted to the Supreme Court,  for the appointment of a new AFC, a de novo hearing and new determination

The parties entered into a so ordered stipulation of settlement dated October 17, 2016  where they agreed to joint legal custody of the children, with residential custody to the defendant and parental access to the plaintiff. In April 2017, prior to the entry of a judgment of divorce, the plaintiff moved, inter alia, to modify the stipulation so as to award him residential custody of the children. While the plaintiff=s motion was pending, the defendant filed a family offense petition dated November 21, 2017, in the Family Court, alleging that the plaintiff strangled the youngest child. The Family Court issued a temporary order of protection against the plaintiff, which, inter alia, directed him to stay away from the children. The plaintiff successfully moved to transfer the family offense proceeding to the Supreme Court. After an in camera interview with the children, the Supreme Court dismissed the family offense petition, vacated the temporary order of protection, and directed overnight parental access with the plaintiff. After a hearing, the Supreme Court granted the plaintiff=s motion to modify the stipulation to award him residential custody of the children.

The Appellate Division observed that an AFC is required to Azealously advocate the child=s position. The Rules of the Chief Jude state that Athe [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child=s best interests= and that the [AFC] should explain fully the options available to the child, and may recommend to the child a course of action that in the [AFC]>s view would best promote the child=s interests=@ (22 NYCRR 7.2[d][2]). An AFC would be justified in substituting judgment and advocating a position that is contrary to the child=s wishes only if the AFC is Aconvinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child=s wishes is likely to result in a substantial risk of imminent serious harm to the child@ (22 NYCRR 7.2[d][3]. AIn those situations the attorney must still inform the court of the child=s articulated wishes if the child wants the attorney to do so=@( 22 NYCRR 7.2[d][3]). The Appellate Division  observed that the role of the attorney for the child is to represent the child=s wishes, not to give the opinion as the child=s attorney as to his [or her] best interests.  It found that the AFC advised the Supreme Court that the children wanted to spend daytime with the plaintiff but they wanted to spend overnights with the defendant. They wanted residential custody to remain with the defendant. The AFC informed the court of her clients= position at the beginning of the hearing. Nevertheless, the AFC=s representation was in direct contravention of her clients= stated parameters. Throughout the course of the proceedings, she failed to advocate on behalf of her clients, who were 13 and 11 years old at the time of the hearing, and who were both on the high honor roll and involved in extracurricular activities. The AFC actively pursued a course of litigation aimed at opposing their stated positions. She joined the plaintiff in opposing the introduction of evidence and witnesses in support of the defendant=s case. When the defendant sought to introduce evidence in defense of the plaintiff=s allegations that the defendant provided the children with unnecessary medical care, the AFC joined the plaintiff in opposing the introduction of the defendant=s evidence. The AFC also opposed the introduction of evidence that may have supported one child=s claim that the plaintiff attempted to strangle her. The AFC objected to the testimony of school personnel for the purpose of explaining the children=s seemingly excessive school absences. The AFC=s questions of the plaintiff during cross-examination were designed to elicit testimony in support of the plaintiff=s case, in opposition to her clients= wishes. Her questions of the psychologist chosen by the parties to provide therapeutic parental access, were aimed at supporting the plaintiff in his quest for residential custody. The AFC objected to the introduction of witnesses and evidence favorable to the defendant=s case, but she did not make similar objections to the plaintiff=s evidence. Upon successfully arguing to preclude the defendant=s proffered evidence, the AFC proceeded to use the defendant=s lack of evidence to support the plaintiff=s positions. She also failed to object to the Supreme Court’s decision to limit the amount of time for the defendant to present her case. She also failed to take an active role in the proceedings by presenting evidence and witnesses on behalf of her clients.

The Appellate Division held that AFC=s failure to support her clients= position was particularly troubling due to the allegations of domestic violence made by both the defendant and the children.  Nevertheless, she continued to argue in support of residential custody to the plaintiff, in opposition to the wishes of her clients. The record established that neither of the exceptions to the rules regarding the AFC=s duty were  present here. There was no finding that the children lacked the capacity for knowing, voluntary, and considered judgment (see 22 NYCRR 7.2[d][3]). Hence, the children failed to receive meaningful assistance of counsel. Under these circumstances, it was improper for the AFC to substitute judgment and take a position that was contrary to the wishes of the children.

 

Supreme Court

Service of summons authorized under Hague Convention on Service Abroad by FedEx International Economy mail to last known address in Mexico.

 

In Sweet‑Martinez v Martinez, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 4590510, 2020 N.Y. Slip Op. 20195 (Sup Ct., 2020) plaintiffs ex parte motion for permission to serve defendant via an alternative method (see CPLR 308 [5]), namely FedEx International Economy mail to his last known address in Mexico was granted. The parties were married on November 17, 2007. Defendant was  deported to Mexico on March 8, 2011. Plaintiff commenced this action for a no‑fault divorce on December 28, 2019 (see Domestic Relations Law ' 170 [7]). Plaintiff argued that  service upon defendant by mail was permissible under article 10 (a) of the Hague Convention on Service Abroad, which provides: AProvided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.@ The Court observed that although there is no case law on this precise issue in New York, other courts have found that Mexico has not outright objected to article 10 (a) of the Hague Convention permitting service of process by mail (see e.g. Intl. Transactions, Ltd v Embotelladora Agral Regionmontana SA de CV, 277 F Supp 2d 654, 663 [ND TX 2002]; Matter of Root, 185 Wash App 1009, 2014 WL 7341131, *9 [Washington Ct App 2014]). To that end, the Court found that service upon defendant via FedEx International Economy mail to his last known address in Mexico was permissible C under both CPLR 308 (5) and article 10 (a) of the Hague Convention.

 

Family Court 

Family Offense Proceeding Dismissed on grounds of Diplomatic Immunity where Respondent and Petitioner were immune from the civil process

In Matter of F.G.O.v. B.G.,.‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 4379526, 2020 N.Y. Slip Op. 20184 (Fam Ct, 2020) Petitioner, who was the spouse of the Respondent sought a final order of protection. Family Court granted Respondents motion to dismiss on the  basis of Respondent=s immunity pursuant to the Vienna Convention on Diplomatic Relations (1961). Respondent stated that he was a diplomatic agent of the Permanent Mission of the Republic of Congo to the United Nations. He submitted to the Court copy of a document issued by the Permanent Mission of the Republic of Congo to the United Nations, dated October 9, 2019, which identified Respondent as a diplomatic agent; a document from the United States Mission to the United Nations which stated that the official records of the United States Mission indicated that Respondent was Anotified by the Permanent Mission of the Republic of the Congo to the United Nations in New York as First Secretary on June 20, 2016 and continues to serve in that capacity; and a United Nations Diplomatic Identification Card with his name, personal information and photograph, issued by the U.S. Department of State, which expired on June 30, 2022. The back of the card explicitly stated that the bearer of the card Aenjoys immunity from criminal jurisdiction.@ The Court held that the documentary evidence submitted, particularly the Diplomatic Identification Card, unlike an affidavit or deposition testimony, is Aessentially undeniable@ and may conclusively establish a defense to the proceeding as a matter of law.

Turning to the substance of the defense, the Court observed that the  Vienna Convention states that a Adiplomatic agent shall enjoy immunity from the civil and administrative jurisdiction [of the receiving State]@ (Vienna Convention at art. 31.1). Although there are exceptions to this immunity involving, inter alia, property in the receiving state and professional or commercial activity outside the scope of diplomatic functions, none of the exceptions are applicable here. In other words, apart from inapplicable exceptions, a diplomatic agent has absolute immunity from civil jurisdiction. The court noted that in Matter of Terrence K. (Lydia K.), 135 A.D.2d 857, 522 N.Y.S.2d 949 [2d Dept. 1987], where the Second Department found that Family Court had properly dismissed the child abuse proceeding because the respondent parents were entitled to diplomatic immunity pursuant to the Vienna Convention. The father was an attaché of the Mission of the Republic of Zimbabwe to the United Nations. The Court noted the record included a certificate stating the father was accepted by the United States Government for inclusion on the list of Members of Permanent Missions Entitled to Diplomatic Privileges and Immunities, and that the mother and child were registered as members of the household and thus share in the privileges and immunities of the father. The Court ultimately found that this evidence Aconclusively establishes that the father and his family, including the child, are immune from the civil process of the courts of this State.@ Family Court held that once diplomatic status is sufficiently established, as here, and no exceptions apply, the Court was is bound to follow the Vienna Convention and controlling precedent (see Reinoso v. Bragg, 28 Misc. 3d 1235(A), 2010 WL 3607482 [Sup. Ct., New York County 2010]). The proceeding was dismissed as the Respondent and Petitioner were immune from the civil process of the courts of this State.